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Foster v. Lowe's Companies, Inc.

United States District Court, W.D. North Carolina, Statesville Division

February 1, 2017

MICHAEL FOSTER and RONALD BOUCHARD, individually, and for all others similarly situated, Plaintiffs,
v.
LOWE'S COMPANIES, INC.; and NILOY INC. d/b/a DCT SYSTEMS, Defendants.

          ORDER AND RECOMMENDATION

          David C. Keesler United States Magistrate Judge.

         THIS MATTER IS BEFORE THE COURT on “Plaintiffs' Unopposed Motion For Leave To Amend Their Complaint” (Document No. 29) filed January 31, 2017, and “Defendant Lowe's Companies, Inc.'s Partial Motion To Dismiss Plaintiffs' Complaint” (Document No. 19) filed December 29, 2016. The motion to amend has been referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b), and immediate review is appropriate. Having carefully considered the motions and the record, and noting that Defendants' counsel does not oppose the motion to amend, the undersigned will grant the motion to amend, and recommend the denial of the motion to dismiss.

         STANDARD OF REVIEW

         Federal Rule of Civil Procedure 15 applies to the amendment of pleadings and allows a party to amend once as a matter of course within 21 days after serving, or “if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.” Fed.R.Civ.P. 15(a)(1). Rule 15 further provides:

(2) Other Amendments. In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.

Fed.R.Civ.P. 15(a)(2).

         Under Rule 15, a “motion to amend should be denied only where it would be prejudicial, there has been bad faith, or the amendment would be futile.” Nourison Rug Corporation v. Parvizian, 535 F.3d 295, 298 (4th Cir. 2008) (citing HCMF Corp. v. Allen, 238 F.3d 273, 276-77 (4th Cir. 2001)); see also, Foman v. Davis, 371 U.S. 178, 182 (1962). However, “the grant or denial of an opportunity to amend is within the discretion of the District Court.” Pittston Co. v. U.S., 199 F.3d 694, 705 (4th Cir. 1999) (quoting Foman, 371 U.S. at 182).

         DISCUSSION

         The undersigned will allow Plaintiff to file an Amended Complaint which supersedes the original Complaint; therefore, the undersigned will also respectfully recommend that “Defendant Lowe's Companies, Inc.'s Partial Motion To Dismiss Plaintiffs' Complaint” (Document No. 19) be denied as moot. This recommendation is without prejudice to Defendants filing a renewed motion to dismiss the Amended Complaint, if appropriate.

         It is well settled that a timely-filed amended pleading supersedes the original pleading, and that motions directed at superseded pleadings may be denied as moot. Young v. City of Mount Ranier, 238 F.3d 567, 573 (4th Cir. 2001) (“The general rule ... is that an amended pleading supersedes the original pleading, rendering the original pleading of no effect.”); see also, Colin v. Marconi Commerce Systems Employees' Retirement Plan, 335 F.Supp.2d 590, 614 (M.D. N.C. 2004) (“Earlier motions made by Defendants were filed prior to and have been rendered moot by Plaintiffs' filing of the Second Amended Complaint”); Turner v. Kight, 192 F.Supp.2d 391, 397 (D.Md. 2002) (quoting 6 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1476 (2d ed. 1990) (“A pleading that has been amended ... supersedes the pleading it modifies .... Once an amended pleading is interposed, the original pleading no longer performs any function in the case.”)); Brown v. Sikora and Associates, Inc., 311 Fed.Appx. 568, 572 (4th Cir. Apr. 16, 2008); and Atlantic Skanska, Inc. v. City of Charlotte, 3:07-CV-266-FDW, 2007 WL 3224985 at *4 (W.D. N.C. Oct. 30, 2007).

         CONCLUSION

         IT IS, THEREFORE, ORDERED that “Plaintiffs' Unopposed Motion For Leave To Amend Their Complaint” (Document No. 29) is GRANTED.[1]

         IT IS RESPECTFULLY RECOMMENDED that “Defendant Lowe's Companies, Inc.'s Partial Motion To Dismiss Plaintiffs' Complaint” (Document No. 19) be DENIED AS MOOT.

         TIME ...


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